Suit dismissed over attack by Alzheimer’s patient

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If you get hurt doing something you knew was potentially risky, you should probably forget about suing someone for negligence. That’s a rule the state Supreme Court established in the 1992 case of an injury in a game of pickup football, and applied last month to an amusement park patron who suffered a broken wrist on a bumper car.

Now a divided state appeals court has used the same reasoning to dismiss a suit by an in-home caregiver who was hired to look after an elderly woman with Alzheimer’s disease and was stabbed with a knife that the woman tried to grab from her. The caregiver knew that Alzheimer’s patients could become violent and that this woman was prone to outbursts of violence, so she was aware of the risk she was undertaking, the Second District Court of Appeal said in a case that may be headed once again to California’s highest court.

The appeals court “responded too readily to the needs of insurance companies as opposed to the rights of the citizenry,” said Alexander Petale, a lawyer for the plaintiff, Carolyn Gregory.

Gregory was a contractor with a home care agency in Los Angeles when she was assigned in 2005 to the home of Bernard Cott and his 85-year-old wife, Lorraine Cott, who had suffered from Alzheimer’s for at least nine years. Gregory wasn’t a nurse or a licensed health care professional, but she had experience in taking care of Alzheimer’s patients and had been injured by one patient in the past, the court said. She also knew that Lorraine Cott sometimes lashed out and was becoming more combative as her condition worsened.

In 2008, the court said, Gregory was washing dishes when Lorraine Cott came up from behind and grabbed for a knife she was holding. The knife slashed Gregory’s wrist, cutting nerves and tendons and costing her the use of a thumb and two fingers. Her medical costs were covered by insurance, but she sued the woman for battery and sued both her and her husband for negligence.

In a 2-1 ruling Monday, the appeals court said Gregory, like the football player and bumper-car rider whose cases were thrown out by the state Supreme Court, had “assumed the risk of her injuries” — in other words, she’d known what she was doing was potentially hazardous, and decided to go ahead anyway.

For the same reason, the court said, members of certain professions, like veterinarians, normally can’t sue private citizens for injuries caused by dangers that come with the job. And in a 1996 case, another appeals court dismissed a suit by a nurse’s aide who was attacked by an Alzheimer’s patient in a convalescent hospital. The same logic should apply to an injury that an experienced caregiver like Gregory suffered in a private home, said Justice Richard Mosk in the majority opinion. Otherwise, he said, families might have an incentive to send such patients to an institution rather than caring for them at home.

But dissenting Justice Orville Armstrong said there’s a difference between a trained medical professional in an institutional setting, where patients are supervised, and someone like Gregory who is hired to provide housekeeping and personal care in a private home.

Lorraine Cott’s condition “posed a risk of harm to others,” Armstrong said. “Fairness demands that (the Cotts) bear responsibility for that risk, and not shift the burden of loss to the hapless worker who happened to be assigned to the home.”